Gomillion v. Lightfoot

PETITIONER:Gomillion
RESPONDENT:Lightfoot
LOCATION:Alabama General Assembly

DOCKET NO.: 32
DECIDED BY: Warren Court (1958-1962)
LOWER COURT: United States Court of Appeals for the Fifth Circuit

CITATION: 364 US 339 (1960)
ARGUED: Oct 18, 1960 / Oct 19, 1960
DECIDED: Nov 14, 1960

Facts of the case

An act of the Alabama legislature re-drew the electoral district boundaries of Tuskegee, replacing what had been a region with a square shape with a twenty-eight sided figure. The effect of the new district was to exclude essentially all blacks from the city limits of Tuskegee and place them in a district where no whites lived.

Question

Did the redrawing of Tuskegee’s electoral district boundaries violate the Fifteenth Amendment of the Constitution which prevents the United States or any individual state from denying a citizen the right to vote on account of race, color, or previous condition of servitude?

Earl Warren:

Number 32, C. G. Gomillion, et al., Petitioners, versus Phil M. Lightfoot, as Mayor of the City of Tuskegee.

Mr. Gray.

Fred D. Gray:

May it please the Court.

The argument of the petitioners is divided into two parts.

I shall present to the Court the statement of a fact and its surrounding circumstances.

Mr. Carter will argue the questions of law applicable to the facts in this case.

We feel that the facts in this case, as alleged in the complaint, are so important that we help reproduced an enlarged copy of the — of Exhibit 2 that is attached to the complaint which appears on page 13 of the record.

They — the Court, in understanding the facts, we shall periodically refer to this map in the (Inaudible), pointing out —

William J. Brennan, Jr.:

(Inaudible)

Fred D. Gray:

Yes, sir, that is an enlargement of the exhibit on page 13 of the record.

We shall periodically refer to this map pointing out certain facts as alleged in the complaint.

This is a class action instituted by 12 Negroes who are former residents in the City of Tuskegee, Alabama, as the limits of that city were front to the enactment of Act No. 140.

William J. Brennan, Jr.:

(Inaudible)

Fred D. Gray:

Yes, sir.

The original limits extend the southern boundaries to this land, the northern boundaries to this land, the western boundaries to the land here and the eastern boundaries to the land here.

Those are the limits as they exist prior to the enactment of Act No. 140.

William J. Brennan, Jr.:

(Inaudible)

Fred D. Gray:

The black line represents the present boundary.

140 changed the land which was withdrawing it from here to this point and it made these various figures as indicating cutting in certain areas.

William J. Brennan, Jr.:

Well, what in any size that (Inaudible)

Fred D. Gray:

No, sir.

It was in the black line represents what is in the municipality and what’s on the outside represents what formally was in the municipality.

Felix Frankfurter:

May I ask how long the old limit were had been in existence?

Fred D. Gray:

I am not sure, Your Honor, but I’m sure it has been in existence for some over 10 years, I believe.

I’m not sure.

Felix Frankfurter:

Where is the Tuskegee Institute on that map?

Fred D. Gray:

Tuskegee Institute is here, in the northwest corner.

It is no longer in the city.

Felix Frankfurter:

That’s — that’s now outside.

Fred D. Gray:

It is now outside.

Fred D. Gray:

Yes, sir.

Felix Frankfurter:

Well, where the — this is just geographic, historical interest, when was the Institute founded by?

Fred D. Gray:

The Institute was founded in —

Felix Frankfurter:

Certainly —

Fred D. Gray:

I believe it was 1860, in 1860 something, I’m not sure.

Felix Frankfurter:

As early as that?

Fred D. Gray:

Sir?

Yes, sir.

Felix Frankfurter:

Well, when did (Inaudible) Washington gets there?

Do you have any idea?

Fred D. Gray:

I’m not —

Felix Frankfurter:

It’s there about the turn of the century, wasn’t it?

Fred D. Gray:

Yes, sir.

The — this class action is on behalf of 12 Negroes.

All 12 of these Negroes lived in various areas outside of the present city but within the former city limits of Tuskegee.

The action originated in the Federal District Court for the Middle District of Alabama.

And the District Court there dismissed petitioners’ complaint without a hearing on the merits.

From that action, the petitioners appealed to the Court of Appeals and a divided court affirmed the ruling of the District Court and this Court granted certiorari.

The complaint alleged the challenge, the constitutionality of Act 140, which Act, as I have just indicated, changed these boundaries from their old position to their present position.

Petitioners alleged that the bill on its face does not disclose any purpose for redefining the Act.

William J. Brennan, Jr.:

Mr. Gray —

Fred D. Gray:

Yes, sir.

William J. Brennan, Jr.:

— now, what’s the (Inaudible)

Fred D. Gray:

It is not amiss valid of any kind, it is simply a file of the county as a whole.

Petitioners —

Felix Frankfurter:

What is the name of the county, Mr. Gray?

Fred D. Gray:

Macon County.

Felix Frankfurter:

Macon.

Fred D. Gray:

Which Tuskegee is the county sit.

Felix Frankfurter:

And what — what’s the — what was the population within the old boundaries and what is — in the present boundaries?

Fred D. Gray:

The old population was approximately just better than 6000.

We are unable to determine now the new boundaries.

A census has just been taken and those figures are not available at this time.

Petitioners have alleged that the obvious purpose and the sole purpose for the enactment of this statute is to deprive petitioners and the class they represent of the right to be residents of the City of Tuskegee to deny them the right to vote in municipal election solely because of their race and color.

We further allege in the complaint that this exclusionary purpose and the effect is revealed among other things back the map and about all the matters which we shall call to the Court’s attention as we proceed.

Now, a — in comparing the old limits of the city with the present limits, we have the following after effects prior to the enactment of Act No. 140, the city, as you can see in the perfect square was a square.

Now, the city begins at this point.

It weaves around and as best we can detect, it includes — it has 28-different size.

Before the Act, the entire population of the city — Negro population of the city was 5397.

Felix Frankfurter:

State those figures again, please, Mr. Gray.

Fred D. Gray:

5397 is the Negro popula — or was the Negro population of the city prior to the Act.

William J. Brennan, Jr.:

(Inaudible)

Fred D. Gray:

Out of the total population of 6000 — 6600, about 6700.

Now, out of the 5397 Negro residents prior to the Act, there were 400 qualified Negro voters.

Since the Act, all of the concentrated areas, a Negro resident has been excluded, for example, the Tuskegee Institute area and the area on the north east side of the city and on the southwest side of the city going on U.S. Highway 80 going west towards Montgomery.

All of these are concentrated Negro areas and all of these have been put outside the city.

Felix Frankfurter:

May I ask you one of two questions?

Fred D. Gray:

Yes, sir.

Felix Frankfurter:

You say there were 400 qualified voters.

Do we — I mean they’re on the registry but couldn’t vote.

Fred D. Gray:

What — what I mean is that —

Felix Frankfurter:

Well, that — that — what I want to know is that do they actually — they actually exercise a franchise?

Fred D. Gray:

Yes, sir, they did.

Felix Frankfurter:

Both for state or county or city elections or —

Fred D. Gray:

For all elections beginning with your municipal election all the way through presidential election.

Felix Frankfurter:

Now, did the — did the old Tuskegee or the — or the Government one of who are mayor and —

Fred D. Gray:

Yes, sir, there is a mayor and a commission of formal government —

Felix Frankfurter:

And then —

Fred D. Gray:

— city council of former government.

Felix Frankfurter:

And those were subject to election.

Felix Frankfurter:

They were — they were elected officials?

Fred D. Gray:

Yes, sir.

Felix Frankfurter:

Do they have a county commissioners or whatever they call it?

Fred D. Gray:

We have a county vote of revenue and —

Felix Frankfurter:

Are they all so popularly elected?

Fred D. Gray:

They are elected but from the county as a whole as well as from residents of Tuskegee.

Felix Frankfurter:

Now, in the — within the new boundaries, are those — the Negroes that are now contained within the new boundaries, they — they have the right to vote for — for county, as I suppose.

Fred D. Gray:

Yes, sir.

Felix Frankfurter:

But they — of course, shed out from any relations to the Government of what is now the City of Tuskegee.

Fred D. Gray:

Exactly and just within the last month, there has been a city election and these Negroes were not permitted to vote in that election.

Charles E. Whittaker:

(Inaudible)

Fred D. Gray:

The entire school system in Macon County is a county school system, so the school system at search was not affected.

Charles E. Whittaker:

(Inaudible)

Fred D. Gray:

Yes, sir.

Since the Act, there are now only four or five Negro voters in Tuskegee.

Before the Act, Tuskegee contained approximately 1310 white persons of whom approximately 600 are registered voters in the city.

Tuskegee still contains 1310 white persons and it still contain approximately 600 white voters.

In other words, as a result of changing all of these boundaries not one white person as well as we’ve been able to ascertain has been excluded, for example, going east on U.S. 80 (Inaudible).

There are white residents along the highway.

So the city limit extends outlook along 80 east and includes the white persons and extending in the opposite direction on 80 west where Negroes resides.

The city limit is only about three or four blocks from the downtown section.

This action must be considered, we submit, in the light of the racial composition of Macon County and the history and in the light of the racial composition of Macon County.

For example, Macon — the residence of Negroes in Macon County has had substantial difficulty in getting registered.

Approximately, 78% of the persons in Macon County are Negroes, leaving only 18% white.

A constitutional amendment to the Alabama Constitution now gives the Legislature the authority to abolish Macon County and divide its territory into the adjoining counties if the need arises.

The complaint further alleges that Act 140 is another device in a continuing attempt on the part of the State of Alabama to disenfranchise Negro residents of Macon County of which Tuskegee is the county seat.

The complaint further alleges that the admitted purpose of the Act was to assure continued white control of Tuskegee City election.

Macon County had no vote of registrars to qualify applicants for more than 18 months at the time this complaint was filed.

And since that time, a vote of registrars has been appointed in Macon County but only three Negroes has been qualified, which means that over a period of some four years, only three Negroes has been able to become registered voters in Macon County.

Felix Frankfurter:

Well, may I ask you this.

Felix Frankfurter:

That situation was it — has been at all affected or is entirely affected by this attempted redistricting?

Fred D. Gray:

What we’re saying is, Your Honor, is that this Act, and we’ve alleged this in our complaint, should be considered —

Felix Frankfurter:

But it’s a part of — I understand that.

So you’ve said a little while ago.

What I want to know is whether there is any relation between the thing you last said as for the disproportioned Negro representation among the registered and so on?

Is that at all affected?

Is that result influence by or affected by this redistricting?

Fred D. Gray:

No more, Your Honor, than the few Negroes who still remained in Tuskegee who are not registered will have difficulty getting registered as — is illustrated by the difficulty that they’ve had over 30 years to get registered.

Felix Frankfurter:

For — for reason unrelated with the logistic?

Fred D. Gray:

Yes, sir.

Felix Frankfurter:

Alright.

Earl Warren:

Mr. Gray, how — how about the municipal services of this people we’re getting beforehand, are they deprived of all of those services now, let us say fire service, things of that kind?

Are they beyond the fire services of the City of Tuskegee?

Fred D. Gray:

It is my understanding that they are.

Earl Warren:

They are.

Fred D. Gray:

Now, in certain areas, I think the city also owns the utilities but the utilities are still furnished but they pay for it.

Felix Frankfurter:

I suppose —

Earl Warren:

Yes.

Felix Frankfurter:

— that applies also to police.

Earl Warren:

Yes.

Fred D. Gray:

I understand there has been a curtailment in police patrol of the areas.

For example, as we allege —

Earl Warren:

But do they patrol at all the City of Tuskegee, do they patrol the — the District that’s been cut off from?

Fred D. Gray:

Some of the areas, yes, sir, because they are still within the — some of the areas are still within the police jurisdiction of the city.

Earl Warren:

Of the State?

Fred D. Gray:

Of the city.

In addition to the city limits, then the city still controls to some degree the — the police jurisdiction which prior to the enactment of this law extended for some three miles beyond the actual city limits but those persons in the police jurisdiction are not illegible to vote in municipal elections.

Felix Frankfurter:

So that must have been that the police authority extended beyond the old limits of the City of Tuskegee, must have been through some other Alabama Legislation.

Fred D. Gray:

Yes, sir, that’s correct.

Hugo L. Black:

That’s general true to the State, doesn’t it?

Fred D. Gray:

Yes, sir.

Charles E. Whittaker:

Now, does that jurisdiction as I understand it (Inaudible)

Fred D. Gray:

Well, there is a substantial question with reference to that because our state statute states that a city whose population is 6000 and over, the — the boundary is extent to three miles.

If it’s less than 6000, then it should extend from mile and a half.

And by the substantial reduction in — in area, as we understand it, it would mean that the present city in Tuskegee is less than 6000 so the — the police jurisdiction would only be a mile and a half.

And it would in some instances, in other instances, it would not.

Felix Frankfurter:

Well, even its three miles since there’s a — there’s a contraction, the three miles wouldn’t radiate so far as it did previously.

Fred D. Gray:

No, sir, it did not.

Charles E. Whittaker:

Well, why does not requires (Inaudible) tell me would it go for a mile and a half to go as far as the extreme southwest corner shown on that map right there?

Fred D. Gray:

No, sir.

A mile and half from this point to here is farther than mile and a half.

Earl Warren:

Is what?

Fred D. Gray:

It is farther.

I’m saying from this point, the end of the city limit is here to the other areas of old city, in my opinion, if it’s farther than a mile and a half.

Felix Frankfurter:

Well, indicate where a mile and a half is on your map from that point.

From (Voice Overlap) —

Fred D. Gray:

I have to —

Felix Frankfurter:

No, from where you first started with your point, from there, that’s right.

I indicate on that map how far a mile and a half to take one.

Fred D. Gray:

It would be difficult without construing to the scale on the map, Your Honor.

I (Voice Overlap) —

Earl Warren:

Well, what is this scale?

Fred D. Gray:

The scale is 800 feet 2 inches, I think.

Earl Warren:

800 what?

Fred D. Gray:

800 feet 2 inches.

Felix Frankfurter:

2 inches and 800 feet.

Earl Warren:

400– 400 feet to the inch then, is that right?

Fred D. Gray:

That’s right.

Earl Warren:

20 inches then would be my own (Inaudible), yes about 8000.

Fred D. Gray:

Well, it has appeared from this point to the end, same would be followed (Inaudible).

Fred D. Gray:

We submit that the complaint further alleges that the purpose and the effect of this Act is to deny Negroes the right to vote solely because of their race and color that the Act deprives — deprived petitioners of the right to participate in other activities as residence in the City of Tuskegee solely because of their race and color in violation of the Fourteen Amendment of the United State Constitution and the Fifteen Amendment.

Mr. Carter will, at this time, argue the law in the case.

Earl Warren:

Mr. Carter.

Robert L. Carter:

Our position in this case is quite simple.

We take the position that that this is purely a case of racial discrimination, solely and simply racial discrimination that the natural result of the passage of Act 140 was to put out of the city limit that — indicated in this map, all the areas of concentrated Negro residents without affecting any white persons and without affecting any of these white qualified voters.

Now, the — as you can see on — on here, that what the map does, what the — what the new — the change is due is to weave in and — in and around the Negro residents in order to exclude as many of them as possibly can.

Now, as Mr. Gray has pointed out, there has been no statement in the — the purpose of the legislation other than the fact that we alleged in our complaint that the purpose of this legislation was discriminatory.

Now, it’s our position that as a result of the enactment of Act 140 that the petitioners and other Negroes similarly situated have been deprived the personal and private constitutional rights protected under the Fourteenth and Fifteenth Amendments to the Constitution of the United States that they have been — did — did not — denied the right of municipal residence in the city and the benefits which are incident thereto and that they have to deny the right to vote in the municipal elections and we contend that they are to deny these rights solely because they are Negroes and for no other reason.

Now, as the city has been redrawn, Tuskegee has become virtually a white city with Negroes denied the right to vote in the city and the right to live in the city.

Now, we take the position, if the Court please, that it is quite obvious that Alabama could not pass the statute which would openly disenfranchise Negroes which would open the set of test for their right to vote in any election in any territory unit which was different from those applying to other persons.

And if such a law were before the Court, there would be no question but that, this would be constitutionally impermissible.

And that if such a claim were made that this would be cognizable in the federal court and that there would be — redress would be available.

We also contend that if Alabama had passed the statute, which denied Negroes the right to live in Tuskegee or to any of the benefits which accrue to the citizens of Tuskegee, that this would be a denial of Fourteenth Amendment rights and that there would be no question that this kind of claim would have — would be available for redress in the federal court.

We further would like to point out to the Court on the basis of its decision that it would not matter whether this was done openly or covertly.

The fact that it was done and this was the result, there would be a claim of constitutional deprivation which would be actionable before the federal judiciary.

Now, our contention is that this is our case, that our case is — is the same case as the cases which apply to the — these kinds of discrimination — discriminations and disenfranchising.

We feel that this passage of Act 140 is — has brought the case of racial discrimination as any case that has come before this Court between Yick Wo versus Hopkins and Cooper versus Aaron.

We also contend that the — the — our allegations, the allegations of undisputed — which are undisputed at this stage of the proceeding which the Court cited in its memorandum opinion in the District Court, that these allegations of rank discrimination cannot be cast aside or discounted by placing labels upon them.

The labeling action one way or the other is — so far as the state — problem is concerned.

We think that the fact that the — that the defendants rely upon the cases like Mount Pleasant versus Beckwith, which involves the plenary power of a — of a State to redefine its borders or Colegrove — Colegrove versus Green are not cases which apply to this — to this situation.

We think that we — that our situation is — is based upon federal constitutional doctrine that the State cannot discriminate against persons because of race or color.

They can’t discriminate against them in terms of the — of the benefits that are — are applicable in terms of residence.

They can’t discriminate against them in terms of their right to participate in elections.

And that where such claims are made that we have a — a prima facie case which the federal courts can hear.

Now —

Felix Frankfurter:

(Inaudible) of prima facie case (Inaudible) isn’t that it?

Robert L. Carter:

That’s right.

And our problem is that in — in the kinds of case that we have alleged, that it is the kind of case in which normally, we have been permitted in the — and of the history of the — of the kinds of racial discrimination cases which occur that there’s been no question but this type of case is — can go to court and that we have a right to a hearing on the merits.

Now, this — we — we think is — is our position.

And that we don’t believe that we need to involve ourselves of — in any argument as to whether Alabama has the right to redraw its boundary lines or whether we — we, petitioners, have any vested right to participate in the electoral process of any territory unit of Alabama or whether the petitioners have any vested rights to live in any territory unit.

Robert L. Carter:

We do — we contend that Alabama may redraft its territorial limits but it cannot do it in order to accomplish a racially proscribed discrimination under the Constitution of the United States.

And that the petitioners do have a vested right to reside in any territorial limit — unit in — in Alabama and to participate in the election process that they have a vested right not to be deprived of the right to live in that unit or to participate in it because they are Negroes.

This we think is the contentions and — the contentions which we make here and this is the kind of case which we think this presents.

Now —

Potter Stewart:

The — Mr. Carter, becoming nonresidents of the Municipality of Tuskegee did not, in anyway, impair the right of the 400 former voters in Tuskegee to vote in all other state and county elections.

Robert L. Carter:

There is absolutely —

Potter Stewart:

You did not impair.

Robert L. Carter:

No, sir.

They — they have the right to participate in all other elections other than elections that are involved only to limit —

Potter Stewart:

In the municipality.

Robert L. Carter:

— Tuskegee.

Yes, sir.

Potter Stewart:

And the — the registrars are county officials, are they not?

So that —

Robert L. Carter:

Yes, sir.

Potter Stewart:

— so that living in Tuskegee doesn’t give you, as a practical matter, more of a chance to become eligible to vote.

You don’t go before different registrars wherein they would —

Robert L. Carter:

Same registration board that the Macon County met registration board which was — which had been made a part of the — the report of the United States Commission on civil rights.

It’s the same board that registers people in Tuskegee (Voice Overlap) —

Potter Stewart:

Both residents and nonresidents of the city.

Robert L. Carter:

This is — this — it makes no difference in this regard.

Our — our contention is that because these persons who were Negroes are not permitted to vote in the municipal elections, that they have been deprived because of color of a right of value and because they are Negroes, because they can no longer live in the City of Tuskegee that they have been denied rights protected under the Constitution of the United States.

We don’t contend that — that they have been, in any way, placed in any different position in other respects.

But in our judgment, this is a — a serious constitutional claim which — which we think, in other circumstances, we are entitled to hear as to have a hearing if approved and if we can prove our case, we think we’re entitled to the relief which has been asked by the court below.

Earl Warren:

Mr. Carter, what — what is the procedure in your State for changing the boundaries of the city?

How — how was this accomplished?

Robert L. Carter:

This was accomplished by a — an Act.

This is called the Private Bill which was sponsored by the Senate of — from this county.

Now, this was submitted by — to the Legislature as the bill of Senator (Inaudible) which was the first in our petition in our brief.

This bill was passed by the State Legislature, a statute affecting only the contours of Tuskegee.

Robert L. Carter:

Now, this is the way which it — it’s — this is the way which it is done as far as I had been able to gather.

Earl Warren:

Is that the normal way that the boundaries of the city are changed in your State?

Robert L. Carter:

Well, this is the normal way that I understand it has changed.

There might be a petition on the residents to the Legislature to change the boundaries but in — in most regard, there was nothing unusual as far as I have been able to gather about the fact that this bill was passed.

Earl Warren:

In other words in your State, the Legislature —

Robert L. Carter:

Yes.

Earl Warren:

— pictures the boundary lines of all cities and the — and the voters have nothing to do with determining what the limits of the city will be.

Robert L. Carter:

This is my — that’s my understanding, exactly, yes.

Earl Warren:

Yes.

Robert L. Carter:

I — I have been advised by — by Mr. Gray that there is a procedure in which they can do it too.

Mr. Justice Black —

Felix Frankfurter:

What procedure?

Robert L. Carter:

That there is a procedure but whereby the voters may participate.

Felix Frankfurter:

And initiate it.

Robert L. Carter:

Yes, initiated by some kind of — by a referendum.

But the —

Potter Stewart:

But in any event, there’s no issue as to the fact that based on Alabama law, the — this — this Act was perfectly proper and valid.

Robert L. Carter:

Based upon Alabama law in terms of —

Potter Stewart:

In terms of the power of legislature (Inaudible).

Robert L. Carter:

— in — in terms of procedural requirements to make —

Potter Stewart:

(Voice Overlap) —

Robert L. Carter:

— the Act valid.

We raise no issue about —

Potter Stewart:

I see.

Robert L. Carter:

— that at all.

Our issue is that we raise and that it is invalid under the Constitution as a substantive of merit.

Now —

Hugo L. Black:

(Inaudible)

Robert L. Carter:

Beg your pardon.

Hugo L. Black:

How does it effect?

Robert L. Carter:

Because of its effect, because the result of the statute is, as we have indicated and that — as we indicate that the statute — we don’t — we — Mr. Justice Black, we don’t even believe that we have to, at this time, go into purpose in terms of the fact that the result of this — this warrant as we have shown is to accomplish what we’ve alleged has been accomplished and that is to put Negroes outside the limits and all the electors and place white people in, indolence so that the — the purpose and effect of the statute as far as we are concerned is — is this and for that reason, we take that the statute is unconstitutional.

Hugo L. Black:

What is proof (Inaudible)

Robert L. Carter:

Well, the proof that we would offer would be to show that we have the city, which has never (Inaudible)

Felix Frankfurter:

I’m sorry, Mr. Carter, I don’t hear you.

Robert L. Carter:

I’m sorry.

Felix Frankfurter:

Suppose you begin the proof, you would offer.

Robert L. Carter:

The proof we would offer is that this territory which has four sides but now, the recast is this — what I consider an extraordinary discernible.

Potter Stewart:

District Court called it a sea dragon, I think.

Robert L. Carter:

Yes, sea dragon.

That — as a result of this, that all Negroes have been cast outside of the city, some close to 5000 Negroes and 1000 white persons being left here.

William O. Douglas:

Would it be opened to the city to call the trial, the Court back for trial to —

Robert L. Carter:

Beg your pardon.

William O. Douglas:

— would it be open to the city under your theory to show that there was another reason for it?

Robert L. Carter:

Oh, yes, we would think that there would because we would be at a point of proof.

We would have to prove our case.

William O. Douglas:

So purpose becomes the central aim of the — of the litigation of the said court, controversial —

Robert L. Carter:

Well, purpose and effect because insofar as — we — we think that we can show that the line was drawn — where a line drawn to a two or three places as the white people on one side and Negroes on the other side of the line.

And that here in other places where the line comes weaved around it, it weaved in around the Negro neighborhood.

Now, we believe that if we can demonstrate that as a result of this, that all of the Negroes are placed out of the line comes that we are in a good position to show discrimination as we would be able to show in a jury explanation cases and this would be the kind of proof that we have.

Earl Warren:

We’ll recess now.